The presumption of service arising from a Certificate of Posting is rebuttable, but mere denial of service by the defendant does not amount to effective rebuttal. Subletting is established when the tenant gives possession of the tenanted premises to another person and shifts his residence to another premises without the intention to return.

( 1 ) THIS second appeal is directed against the judgment and decree dated 8th September, 2004 passed by the learned Additional District Judge, 5th fast Track Court at Barasat in Title Appeal No. 02 of 2004 reversing the judgment and decree dated 8th September, 2003 passed by the learned civil Judge (Junior Division), 3rd Court at Sealdah in Title Suit No. 70 of 1999.

( 2 ) THE appellant in this appeal was the plaintiff in a suit for eviction on the ground of subletting.

( 3 ) THE plaintiff filed a suit for eviction against the defendant No. 1 (tenant) on the ground of subletting.

( 4 ) THE plaintiff alleges that the defendant No. 1 who is a tenant in respect of the suit property lying at premises No. 132c, Nagendra Nath road, P. S. Dumdum has permanently shifted his residence to premises No. A-52, Survey Park, Santoshpur, Kolkata-75 after subletting the suit premises in favour of his elder brother the defendant No. 2. Hence this suit was filed after service of notice of ejectment under Section 13 (6) of the West Bengal premises Tenancy Act upon the defendant No. 1 by registered post with A/d as well as under Certificate of Posting. The service which was sought to be effected upon the defendant No. 1 by registered post with A/d at the suit premises came back unserved with the postal remark left, addressee out of station.

( 5 ) THE defendant No. 1 contested the said suit by filing written statement denying the allegation of subletting. The defendant No. 1 claimed that all the brothers of the defendant No. 1 including the defendant No. 2 have been staying in the suit premises with the defendant No. 1 since the inception of the tenancy.

( 6 ) THE said defendant claims that the said defendant has his permanent place of residence at the suit premises and the said defendant has not parted with possession of the suit premises in favour of the defendant no. 2, as alleged.

( 7 ) THE legality, validity and sufficiency of service of ejectment notice upon the said defendant was also challenged in the said written statement.

( 8 ) THE learned Trial Judge was pleased to pass a decree for eviction on contest against the defendant in the said suit on the ground of subletting. The learned Trial Judge also found that the ejectment notice was duly served upon the defendant No. 1.

( 9 ) CHALLENGING the said judgment and decree of the learned Trial judge, the defendant/respondent No. 1 filed an appeal being Title Appeal no. 02 of 2004 before the learned District Judge at Alipore. The said appeal was subsequently transferred to the Court of the learned Additional District judge, 5th Fast Track Court at Barasat.

( 10 ) THE learned First Appellant Court was pleased to allow the said appeal on contest by setting aside the judgment and decree of the learned trial Judge only on the ground that the ejectment notice was not properly served upon the defendant/respondent No. 1 herein determining his tenancy. The learned Appellate Court held that the service of such ejectment notice upon the tenant is a precondition for filing a suit for eviction and since the notice under Section 13 (6) read with Section 106 of the Transfer of Property act was not properly served upon the tenant determining his tenancy, the judgment and decree of the learned Trial Judge was set aside by the learned first Appellate Court.

( 11 ) THIS conclusion of the learned First Appellate Court indicates that though notice was served but such service having not been legally effected upon the defendant, the tenancy of the defendant No. 1 has not been determined and as such the suit is not maintainable.

( 12 ) WHILE allowing the said appeal, the learned Court below however affirmed the findings of the learned Trial Judge on the issue regarding subletting.

( 13 ) THUS, though both the Courts below concurrently found that the defendant No. 1 is guilty of unauthorized subletting the suit property in favour of the defendant No. 2 without obtaining consent in w